Madras High Court
R.Parthiban vs Pos Hyundai on 4 June, 2024
Author: J. Nisha Banu
Bench: J.Nisha Banu
W.A.No.31 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 04.04.2024
Pronounced On : 04.06.2024
CORAM
THE HON'BLE MRS. JUSTICE J.NISHA BANU
AND
THE HON'BLE MR. JUSTICE P. DHANABAL
W.A.No.31 of 2024
R.Parthiban ... Appellant/Petitioner
Versus
1.POS HYUNDAI
Steel Manufacturing India Private Limited
No.5, Kem Tower
North Usman Road
Thiyagaraya Nagar
Chennai-600 017
2.POS HYUNDAI
Steel Manufacturing India Private Limited
Rep. By its Assistant General Manager
F-70, Sipcot Industrial Estate
Irungattukottai, Sriperumbudur
Kanchipuram District
3.The Presiding Officer
II Additional Labour Court
Chennai ... Respondents/Respondents.
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent Act, praying to
set aside the order in W.P.No.30841 of 2018 dated 10.10.2023.
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Page 1/8
W.A.No.31 of 2024
For Appellant : Mr.K.Sanjayan
For R1 & R2 : No appearance
R3 : Court.
JUDGMENT
Per J. NISHA BANU, J.
This writ appeal has been preferred by the appellant/employee as against
the order passed in W.P.No.30841 of 2018 dated 10.10.2023, wherein, the
learned Single Judge dismissed the writ petition filed by the employee.
2. The appellant/employee filed Claim Statement in I.D.No.16 of 2014
praying to set aside the termination order dated 27.03.2012 and to direct the
respondents 1 and 2/Hyundai Management to reinstate the petitioner in service
with full backwages, continuity of service and with all other attendant benefits.
3. The averments in the claim petition is that the petitioner who was
appointed as an Operator and thereafter as Carpenter sustained grievous
injuries on his left hand in the course of employment. After treatment, the
petitioner was posted in the Packing Department, but was doing Crane
Operator work, but he was experiencing much pain on his hand. The petitioner
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therefore requested the Management to post him in other departments, but the
respondents refused the request. The respondents 1 and 2 by an order dated
27.03.2012 terminated the services of the petitioner on the ground he was
absent from 09.11.2011 to 17.11.2011, from 21.11.2011 to 29.11.2011 and
further from 06.01.2012 to 29.01.2012 and again 09.03.2012 to 14.03.2012
and from 20.03.2012 continuously absent.
4. The respondents filed counter and denied the averments in the claim
petition, stating that when the petitioner met with an accident, the Management
admitted him in Ramachandra Hospital and bore all the expenses of his
treatment and paid compensation of Rs.47,512/-. Even after the accident, on
humanitarian grounds, he was continued to be employed on same wages and he
was assigned the work in packing section. However, his attendance,
performance, behaviour to his work and towards his superiors invited the
Management to take disciplinary action. The company gesture of sympathy for
him, leave with wages for the period of his absence for treatment and
compensation did not reap any good attitude but was expecting a non
performance employment till his retirement. After putting on notice to the
employee, the Management decided to put an end to the employment of the
petitioner for a reasonable cause.
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5. Before the Labour court, the petitioner/employee was examined as
W.W.1 and marked exhibits W.1 to W.27; on the side of Management, M.W.1
was examined and M.1 to M.18 were marked. The Labour court framed the
following issues for determination:-
(i) Whether without issuing charge memo, conducting domestic enquiry, the
termination order issued is valid under law?
(ii)Whether the claim of petitioner for an order of reinstatement with
continuity of service and backwages with all other benefits shall be
granted?
The Labour court, after discussing the issues in the light of the facts of the case
and the provisions of Section 25F of the Industrial Disputes Act, held that the
management has given sufficient opportunity to the petitioner to conduct
himself regularly but it was not utilized by him; in such circumstances, the non
issuing of charge memo, receiving explanation, proceeding with domestic
enquiry and issuing 2nd show cause notice is no matter mandatory and it will not
prejudice the right of the petitioner. The Labour court cited the decision of the
Hon'ble Apex Court in the case of M/S. L&T Komatsu Ltd vs N.
Udayakumar [(2008) 1 SCC 224] wherein it was held that the chronic
unauthorized absenteeism is a gross indiscipline and a serious misconduct. The
Labour court, dismissed the claim petition filed by the petitioner/employee by
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pointing out that punishment of termination should not be a wrong signal to the
other employees but also jeopardize the discipline prevailing in the factory.
6. As against the dismissal of the claim petition, the petitioner/employee
filed W.P.No.30841 of 2018 and the learned Single Judge, by order dated
10.10.2023, noted that the employee had admitted in his deposition before the
Labour court that he absented himself and the management did not receive the
leave applications. The learned Single Judge further noted that the petitioner has
a habit of continuously remaining absent; his misconduct with superiors
resulted in his suspension for three days. Based on the requisition letter
submitted by the petitioner, warning letters were given to him on 14.12.2006
and 31.12.2011 (Ex.M.17 and Ex.M.18) and even after that the petitioner
continued to be irregular to work; the petitioner had not also worked
continuously for 240 days. In the aspect of termination of the petitioner without
conducting any domestic enquiry is concerned, the learned Single Judge cited
the decisions of Honourable Supreme Court in the subject and held that the
management has adduced evidence to prove genuinity in holding the job for
petitioner; the absence of petitioner started from 2006 and it continued till 2012
and for the six years, petitioner have not proved that he worked continuously
for 240 days. The learned Single Judge, found that there was no infirmity in the
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order passed by the Labour court.
7. In the present intra court appeal, the contention of the learned counsel
for the appellant/employee is that the learned Single Judge ought to have taken
note of the service rendered by the appellant and would have modified the
punishment.
8. Under the facts and circumstances of the case, while looking into the
past history of the appellant/employee, the order of dismissal of the writ petition
passed by the learned Single Judge, is perfectly in order.
9. Habitual absenteeism is gross violation of discipline. In the present
case on hand, there is no doubt that the appellant/employee is found of
misconduct of habitual absenteeism, indiscipline towards superiors and
irregular to work. The discretion of Labour court can be exercised under Section
11-A only on the existence of certain factors like punishment being
disproportionate to the gravity of misconduct so as to disturb the conscience of
the court, or the existence of any mitigating circumstances which require the
reduction of the sentence, or the past conduct of the workman which may
persuade the Labour Court to reduce the punishment. The learned Single Judge
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appreciated the factual background of the case in the light of principles of the
Honourable Supreme Court on the issue and come to the inevitable conclusion
not to interfere with the Labour Court decision.
10. In our considered view, the order of the learned Single Judge does not
call for interference. Accordingly, this Writ appeal is dismissed. No costs.
(J.N.B, J.) (P.D.B, J.)
04 .06.2024
Index : Yes /No
Speaking order : Yes /No
Neutral Citation Case : Yes /No
nvsri
To
1.The Presiding Officer
II Additional Labour Court
Chennai
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J. NISHA BANU, J.
and
P.DHANABAL,J.
nvsri
Judgment in
04.06.2024
https://www.mhc.tn.gov.in/judis
